United States v. Pyle, Crim. No. 80-218 to 80-221.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: BECHTLE
• Citation: 518 F. Supp. 139
• Parties: UNITED STATES of America v. Edward C. PYLE, Robert McQuilken, Bob Van Blunk and Arlene Whalin.
• Docket Number: Crim. No. 80-218 to 80-221.
• Decision Date: 14 July 1981

518 F. Supp. 139

UNITED STATES of America
v.
Edward C. PYLE, Robert McQuilken, Bob Van Blunk and Arlene Whalin.

Crim. Nos. 80-218 to 80-221.

United States District Court, E. D. Pennsylvania.

June 23, 1981.

As Amended July 14, 1981.

518 F. Supp. 140

Peter F. Vaira, U. S. Atty., Elizabeth Ainslie, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Mark Schaffer, Defender Ass'n of Philadelphia, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

By Order of April 21, 1981, this Court vacated judgments of conviction entered against four defendants in the magistrates' court below and remanded for a new trial. Defendants had been convicted of criminal contempt under 18 U.S.C. § 401 for having violated the terms of an injunction issued in litigation before another member of this Court. See Resident Advisory Board v. Rizzo, 503 F.Supp. 383 (E.D.Pa.1980). Following conviction, all defendants appealed. Jurisdiction over these appeals lies in this Court pursuant to 18 U.S.C. § 3402, which provides that "in all cases of conviction by a United States magistrate an appeal of right shall lie from the judgment of the magistrate to a judge of the district court of the district in which the offense was committed." All defendants joined in attacking the judgments of conviction on the following four common grounds: (1) the magistrate did not have subject matter jurisdiction to try the defendants; (2) the defendants were denied their statutory right to a jury trial; (3) the magistrate should have disqualified himself as factfinder because he had tried other persons for contempt of the same injunction arising out of the same events; and, (4) the injunction is invalid for overbreadth, impermissibly infringing on First Amendment rights. In addition, each of three of the defendants raised separate challenges to the sufficiency of the evidence supporting his conviction.

Upon consideration of the issues raised on appeal here, this Court concluded that, while the magistrate did have subject matter jurisdiction to try the defendants and the injunction is not constitutionally defective, the defendants were nevertheless improperly denied their right to a jury trial conferred by 18 U.S.C. §§ 402 and 3691. Although the Court did not so state in its Order of April 21, the Court saw no need to decide whether the magistrate should have disqualified himself or whether there was sufficient evidence to support the convictions. The cases were remanded for a new trial before a jury.

Since the Court's entry of the Order vacating the judgments of conviction, defendants have filed a motion for clarification or

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reconsideration of that Order. Defendants therein ask the Court to state whether it ruled on the sufficiency of the evidence to support the convictions. Having concluded, upon further consideration, that the proper course for the Court is to review the sufficiency of the evidence at the present stage of the litigation, the Court has done so and concludes that the evidence is sufficient as to all defendants except as to defendant Robert Van Blunk. Accordingly, an appropriate Order accompanies this Memorandum, modifying the Court's Order of April 21, 1981, by reversing the judgment of conviction and directing the entry of a judgment of acquittal as to defendant Van Blunk only

This Memorandum is in support of the Court's Order of April 21, 1981, vacating the convictions and remanding for new trial, and in support of the Order which accompanies this Memorandum now being entered in response to defendants' motion for clarification or reconsideration, reversing the judgment of conviction and directing the entry of a judgment of acquittal with respect to defendant Van Blunk.

I. Statement of the Case

The contempt proceedings giving rise to these appeals have their roots in the protracted litigation initiated to compel the construction of a public housing project in the Whitman Park section of Philadelphia, Pennsylvania. The turbulent history of that project has been recounted in detail elsewhere and need not be repeated. See Resident Advisory Board v. Rizzo, 425 F.Supp. 987 (E.D.Pa.1976), aff'd in relevant part, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978).¹ See also Sworob v. Harris, 451 F.Supp. 96 (E.D.Pa.1978), aff'd, 3 Cir., 578 F.2d 1376, cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). In brief, however, the project envisions the construction of low-rise townhouses of public housing for low-income tenants in an area of the city where the vast majority of the residents are white. The project, which has been planned in some form since 1956, has faced strong opposition from area residents and, through much of its history, from the city government itself. Construction is still in progress.

In 1971, in response to the various delays in the project, a class of plaintiffs, made up of low-income minority persons, who were unable to secure adequate housing outside of areas of minority concentration, and two organizations whose memberships included similarly situated public housing tenants, filed a civil action against a number of defendants arguably responsible for the construction of the project. After certain additional parties were joined during the course of pretrial proceedings, the defendants included the mayor of Philadelphia, the managing director of Philadelphia, the city itself, the builder in charge of the project, the local community group opposed to the project, two municipal housing authorities, and — essential to our decision here — the United States Department of Housing and Urban Development ("HUD").² The nonjury

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trial of this underlying civil action consumed 57 days. At its conclusion, the district court held that the governmental defendants had violated statutory obligations to take affirmative steps to promote integration in public housing; had unlawfully taken actions in regard to the Whitman Park project which had a racially discriminatory effect without a compelling justification; and, in the case of the City of Philadelphia, had unlawfully taken racially discriminatory actions with a racially discriminatory purpose.³ The Court, therefore, issued an order directing the various governmental defendants to "take all necessary steps for the construction of the Whitman Park Townhouse Project as planned." 425 F.Supp. at 1029. Of particular importance here, the Court specifically found that HUD had violated its affirmative duty to promote public housing imposed by Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3608(d)(5), 425 F.Supp. at 1021, which finding was not appealed by HUD. See Resident Advisory Board v. Rizzo, 564 F.2d at 139-140

Despite the court's order, which was affirmed in all pertinent respects, see id. at 153, area residents continued to resist the construction of the project. On March 14, 1980, upon the motion of plaintiffs in RAB v. Rizzo, the district court entered a temporary restraining order to be effective March 17, 1980, barring the area residents ("Whitman Council") from interfering with the construction of the townhouses, which was scheduled to begin March 18, 1980. Plaintiffs also moved for a preliminary and permanent injunction. The court held three days of hearings, during which the Court granted the motion of A&R Development, Inc., the project developer, and Jolly Construction Co., the general contractor, to intervene as parties plaintiff. "The intervenors, along with HUD, joined plaintiffs' motion for preliminary and permanent injunction." Resident Advisory Board v. Rizzo, supra, 503 F.Supp. at 385 (emphasis added). The court thereafter entered the preliminary injunction, which was allegedly violated by the four defendants now appealing to this Court.

In pertinent part, the order enjoined the Whitman Council, its members and officers, and all those acting in concert with them, from "picketing, protesting, rallying, demonstrating or similarly assembling in the Whitman Construction Site Area," which was defined by a dotted line drawn on a map of the area attached to the order. As an exception to the general prohibition, however, the order provided that one informational picket could stand at each of the ten gates to the construction site; further picketing was also permitted within a barricaded sidewalk area along one block across the street from the construction site. The order permitted the informational pickets to peacefully converse with persons entering or leaving the job site, but provided that such conversations were to be limited to 60 seconds in duration and also prohibited the informational pickets from obstructing access to the job site. In nine additional paragraphs, the injunction prohibited, in detail, other acts of direct interference with the construction of the project.⁴ Finally,

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the order provided for the United States Marshal or his deputies to assist in the enforcement of the order

On the morning of June 3, 1980, a crowd of area residents gathered in front of the two eastern gates to the job site, barring access to the site. The United States Marshal, using a bullhorn, announced that the crowd was obstructing access to the site in violation of the district court's injunction, and that those who did not disperse would be arrested. A little more than five minutes later, the Philadelphia Police backed emergency wagons into the area and began arresting people. Among those arrested were the four defendants here.

Defendants were charged with criminal contempt under 18 U.S.C. § 401 for violating the injunction prohibiting interference with the construction of the project. On June 27, 1980, the district court from which the injunction had issued referred the cases for trial by the magistrate pursuant to 18 U.S.C. § 3401, "provided that the potential penalties for such contempts do not exceed misdemeanors, as defined in ...